Clarifying the Scope of R.C. 149.43(B)(8): Prosecutorial Personnel and Payroll Records Are Public
Introduction
In State ex rel. Ware v. O’Malley (2025-Ohio-1855), the Supreme Court of Ohio resolved a recurring tension under the Ohio Public Records Act (R.C. 149.43) between incarcerated requesters and prosecuting authorities. Relator Kimani E. Ware, an inmate, served eight records requests on Cuyahoga County Prosecutor Michael C. O’Malley between September and December 2023. He sought, among other things, the personnel files and payroll records of the elected prosecutor and his assistant prosecutors, as well as a list of cases assigned to an assistant prosecutor. Prosecutor O’Malley refused wholesale, invoking R.C. 149.43(B)(8)—the special pre-approval requirement for records “concerning a criminal investigation or prosecution” when the requester is incarcerated. Ware then filed this mandamus action, contending that those personnel and payroll records are not “criminal-investigation” records and that no case list exists but, if it did, it could not be withheld under (B)(8).
Summary of the Judgment
The Court granted a limited writ of mandamus ordering O’Malley to produce:
- The personnel files of three assistant prosecutors (Perk, Ochocki) and of Prosecutor O’Malley;
- Their payroll records;
- A responsive list of cases assigned in 1999 to Assistant Prosecutor Williamson, or a certification that no such list exists.
Analysis
1. Precedents Cited
- State ex rel. Russell v. Thornton, 2006-Ohio-5858: Held the inmate-records exception is “broad and encompassing” and that offense reports are exempt absent judicial approval.
- State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 2012-Ohio-4246: Interpreted “concerning a criminal prosecution” as records used in the criminal trial process.
- State ex rel. Ware v. O’Malley (Slip Opinion 2024-Ohio-5242): Held assistant-prosecutor personnel files are not “criminal-investigation” records and must be disclosed.
- State ex rel. Ellis v. Cleveland Police Forensic Lab, 2021-Ohio-4487: Confirmed that an office may not withhold an entire request simply because part of it falls under (B)(8).
2. Legal Reasoning
Scope of R.C. 149.43(B)(8): By its plain terms, (B)(8) applies only to public records “concerning a criminal investigation or prosecution.” Personnel and payroll files of elected or assistant prosecutors do not document the investigative or prosecutorial functions themselves. They reflect employment history, compensation, benefits and office organization—matters of ordinary public-employment oversight. The Court thus held that those records fall outside the (B)(8) exception and must be released, subject only to redaction of non-organizational private details (e.g., home address, Social Security number).
Partial versus Entire Withholding: Even if some portions of a requested file might tangentially relate to criminal work (such as internal evaluations or performance reports referencing trial outcomes), the statute does not authorize wholesale denial. Following Ellis and the earlier Ware slip opinion, the Court reaffirmed that a public office must segregate exempt material, release the remainder, and invoke (B)(8) only for that discrete subset—provided the inmate first obtains judicial pre-approval.
Nonexistent Records: O’Malley’s affidavits established that no case‐specific “invoices” or time-stamped pay-stubs exist for Van’s work on individual case files. Under established law, a relator must prove by clear and convincing evidence that such records exist. Ware presented none. The writ was therefore denied as to those items.
3. Impact
For Public-Records Requesters: Incarcerated individuals gain a clearer path to obtaining payroll and personnel information about prosecutors, without the need for judicial pre-approval. They must still comply with (B)(8) when records demonstrably document criminal investigations or prosecutions (e.g., unredacted grand‐jury exhibits, sealed investigation logs).
For Prosecuting Authorities: Offices can no longer assert (B)(8) as a blanket exemption for any record tied to a prosecutor’s file. They must examine requests line by line, release non-exempt material promptly, and narrowly identify any withheld portions truly “concerning a criminal investigation or prosecution.” This decision strengthens transparency and accountability in prosecutorial offices.
Complex Concepts Simplified
- Mandamus: An extraordinary judicial order compelling a public official to perform a nondiscretionary duty. Here, the Court compels records production under R.C. 149.43.
- R.C. 149.43(B)(8): A special inmate exception that requires an incarcerated requester to get judicial approval before obtaining any “public record concerning a criminal investigation or prosecution.” It does not apply to all records involving prosecutors.
- Limited Writ: A mandamus order requiring partial compliance—here, release of specific records—rather than a blanket order for every document sought.
- Statutory Damages: A financial penalty (up to $1,000) for wrongful withholding of public records. The Court deferred the damages calculation pending full compliance with its order.
Conclusion
State ex rel. Ware v. O’Malley refines Ohio’s public-records law by drawing a bright line between routine employment files of prosecutors—which are public—and records that directly document criminal investigations or prosecutions. Prosecuting offices must now segregate exempt material under R.C. 149.43(B)(8), release the balance, and bear the burden of proving any heightened‐approval exception. The decision promotes transparency, protects inmate rights carefully, and underscores that prosecutorial personnel and payroll records serve the public interest and are not shielded by criminal-investigation confidentiality.
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